How to be a hero of liberty: you may have to gild the lily ...

WHEN historian Doris Kearns Goodwin was accused of plagiarism, Laurence Tribe rushed to her defense. The Harvard Crimson had published an editorial demanding that Goodwin resign from Harvard's board. Tribe, a professor of constitutional law at Harvard Law School, wrote a letter to the Crimson criticizing its editorial as "utter nonsense." His friend Goodwin was guilty of some "sloppy" and "inadequate" footnoting--but of nothing worse. "[U]nlike any number of historians and others who have been caught falsifying as fact what was, in truth, fantasy--either about their own lives or about the events they were chronicling--Goodwin has not been accused, and could not plausibly be accused, of ever purveying false or misleading information, the cardinal sin for any scholar."

Tribe wrote that letter in March 2002. Amore recent plagiarism scandal has hit closer to home. In the fall of 2004, Joseph Bottum made the case, in The Weekly Standard, that Tribe had himself ripped off the words of another scholar. Many passages in his 1985 book God Save This Honorable Court bear strong resemblance to passages in Henry Abraham's 1974 Justices and Presidents. After Bottum's article appeared, Tribe admitted his "failure to attribute some ... material" to Abraham and said, "I personally take full responsibility." Harvard said it would investigate the matter.

Embarrassing, certainly. But if Tribe's defense of Goodwin makes sense, then perhaps it could applied to this lapse too: At least Tribe didn't present "fantasy" as "fact." Tribe's colleague Alan Dershowitz came to his defense, just as Tribe himself had defended Goodwin and another colleague charged with plagiarism, law professor Charles Ogletree. (They're quite a band of brothers there in Cambridge.) "If the Standard were to do the same minuscule analysis of every word in the books written by the paragons of the right, they would find much the same thing," said Dershowitz.

But in another recent incident, Tribe appears to have committed precisely the offense that he identified as "the cardinal sin for any scholar"--and it's an incident too weird for anyone to maintain with any plausibility that every scholar does the same.

A 'PRIVATE STORY'

In the spring of 2003, The Green Bag, a legal journal, published an essay by Tribe called "Public Rights, Private Rites: Reliving Richmond Newspapers For My Father." It is a memoir of Tribe's first argument before the Supreme Court, in 1980. The case grew out of a Virginia murder trial. The judge had closed the trial to the public, including both the victim's family and reporters. Tribe represented the newspapers for which those reporters worked.

Tribe argued the case just two weeks after his father died. That fact, his essay explains, emboldened him to do something daring: to invoke the Ninth Amendment to the Constitution.

The Ninth Amendment is the one that reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words: Just because the Constitution lists a bunch of rights doesn't mean that we don't have other rights that aren't listed. Even people who think that's a fine principle have been a bit puzzled about how the amendment should affect government in practice, and in particular about what judges should do with it.

There are people who think that the courts should strike down a lot of laws restricting people's conduct because those laws violate "unenumerated rights." That idea horrifies others, who think that judges would then have a license to invent any right they like and nullify any law they don't. For much of American history, the courts have in practice sided with the latter camp. They have not used the Ninth Amendment to overthrow laws and vindicate liberties.

Tribe's essay casts himself as a kind of hero for breathing life into the amendment--and overcoming a lot of resistance to his doing so. His client had decided not to ask the Supreme Court to take the case. Tribe had to get the client to reverse its decision. He did, and then got the Court to review the case. He thought that a First Amendment freedom-of-the-press argument would not suffice to win: He would have to turn to the Ninth Amendment.

"But the Ninth Amendment, I learned as I briefed Richmond Newspapers and as I found myself being lobbied hard by the pillars of the media bar, was barely to be mentioned in polite society, much less was it ready for prime time," Tribe writes. "Who was I, an utter novice at Supreme Court advocacy, to buck the conventional wisdom on something so basic?"

Tribe then answers his own question:

   Well, I was a lawyer who'd taken a case because he believed in it,
   who'd been teaching and would teach generations more of law students
   about the kinds of questions the case raised, who'd gone on
   record a couple of years earlier in a treatise, American
   Constitutional Law (1st ed. Foundation Press, N.Y. 1978) (now in its
   third edition as of 2000), on most of the issues the case touched,
   and who cared a lot more about keeping faith with what he'd feel
   bound to write and teach in years to come, and with how he thought
   the Court should be approached, than with what the Pooh-Bahs of the
   establishment thought of him. That's who I was. And am. So the
   Ninth Amendment argument stayed in. And, I'm happy to report, in
   the end it hit its target.

By early February 1980, Tribe had received the State of Virginia's brief defending its power to impose secrecy and started working on his reply brief. At his wife's suggestion, he called his parents a day before their wedding anniversary. The next day he felt "a peculiar numbness," as though he were "dying" (emphasis Tribe's). He then heard that his father "had collapsed" and "was in critical condition." He flew home, and thought he saw a shooting star through the airplane window. "Somehow I knew it was my father. I cried all the way across the country. My father had died before the plane landed in San Francisco."

Tribe kept working on the case even though he had an "unfocused, disoriented frame of mind." There was nobody else, he writes, who could have stood in for him. He received "urgent phone calls imploring me, above all else, to forget that 'crazy Ninth Amendment argument'"--but he soldiered on.

   Literally all I recall about writing the reply brief--which ended
   (I've just reread it) with a call upon the Court to vindicate "a
   tradition ... demonstrably central to the public awareness and
   institutional accountability that define our form of government"
   --is that I refused to use that brief as a vehicle for backing away
   from the Ninth Amendment, whose affirmation of rights unwritten and
   unseen I think I was almost beginning to identify, in some then
   still unconscious way, with the mystery of why I'd fortunately
   agreed to call my father the night before his anniversary; of why
   I'd felt the knock of doom before our phone had rung; and, above
   all, of what I'd seen streaking across the predawn sky out of the
   airplane window.

Tribe continues, "Reflecting now on my resolute commitment to arguing the case in Ninth Amendment terms ...I think my grief may have permitted me to see a bit more clearly through the fog of superficial arguments and objections and may have steeled me against the kinds of eleventh-hour distractions and importunings that co-counsel, meaning to be helpful, are prone to inject as a Supreme Court argument nears."

Tribe's private loss also helped him to see the importance of the case for murder victims' families: Just as seeing his father in an open casket had helped him process his grief, so would seeing a trial help them. When he spoke to the Court, Tribe "felt emboldened by the circumstances not to pull my punches."

When Tribe's allotted speaking time was over, he recounts in his Green Bag essay, Chief Justice Warren Burger kept him at the podium to ask him about other possible unenumerated rights ("he had quite a litany" of rights "to ask about"). "I imagine--this is pure supposition, not actual memory--that I must have worked at suppressing a huge grin, realizing, as I must have realized by then, that the Chief, not someone I'd tentatively counted in my corner when the day began, was seemingly asking for help in sketching what was to become the analysis in his plurality opinion....Our back-and-forth must have gone on for a couple of minutes."

Tribe won the case. Chief Justice Burger's plurality opinion for the Court referred to the Ninth Amendment as one of the reasons to side with Tribe's client. Tribe notes that the Supreme Court has rarely cited the Ninth Amendment in this fashion. The next time a plurality or majority would do so was in the 1992 Casey decision, when the Court mentioned the Ninth Amendment among several others as reasons to reaffirm its holding that abortion must be legal. Tribe does not quite say that his work in Richmond Newspapers paved the way for Casey. The reason for his essay was to explain how his "private story ... affected what I had dared to say on that February day" in 1980. "[M]y main reason for deciding to tell the story here was just that it's too large a part of who I am to leave it permanently submerged."

WHAT THE RECORD SHOWS

And if that story casts Tribe as a forgotten hero of the Ninth Amendment--and thus, to some people, as a hero of the story of American liberty ...Well, the essay leaves the impression that Tribe doesn't mind that too much. The Richmond Newspapers decision, he writes, was a "landmark."

But the record in front of the Supreme Court does not corroborate important parts of Tribe's story. He didn't argue his case in Ninth Amendment terms. Other parties in the case did, but not Tribe.

The Ninth Amendment did not appear in the statement Tribe filed asking the Supreme Court to review the case. There, Tribe said that Virginia had violated the First, Sixth, and Fourteenth Amendments. At this stage of the litigation, it was the lawyers for the American Society of Newspaper Editors and the American Newspaper Publishers Association who made the Ninth Amendment argument, in their friend-of-the-court brief.

Tribe's brief on the merits of the case did refer to the Ninth Amendment--but the references hardly justify the billing Tribe gave them two decades later. Tribe opened and closed a seven-page section of his 72-page brief with references to the amendment. But in between he mostly discussed Fourteenth Amendment precedents. There was no discussion of the history of the Ninth Amendment--nothing about how James Madison viewed it, nothing about the Court's prior treatment of it. The previous case in which the Ninth Amendment had figured most prominently was Griswold v. Connecticut (1965), in which the Court had struck down a law against contraception. Tribe didn't mention it. The Ninth Amendment was a mere rhetorical flourish in this brief. The State of Virginia felt no need to include any Ninth Amendment analysis in its own brief, since there was nothing much to respond to.

It was outside parties who emphasized the Ninth Amendment arguments at the merits stage. The newspaper editors and publishers weighed in with another friend-of-the-court brief. Their brief discussed Madison and Griswold. Chief Justice Burger's opinion would later make the same points about Madison's role in enacting the amendment that this brief made. E. Barrett Prettyman Jr.--certainly a heavyweight establishment lawyer of the era--filed another friend-of-the-court brief favorably mentioning the Ninth Amendment claims of the editors and publishers. Prettyman filed it on behalf of interests including the National Association of Broadcasters, the Associated Press, and the National Press Club. The State of New Jersey filed a brief, too. It had a short discussion of the Ninth Amendment that cited Griswold and a law-review article on how the amendment pertained to the openness of trials.

Tribe, you will recall, says that he refused to use his reply brief to back away from the Ninth Amendment--even though, he says, he was under great pressure to do so. But, again, there wasn't much to back away from, so it's hard to see why anyone would have thus importuned him. The reply brief said almost nothing about the Ninth Amendment (perhaps because Virginia had ignored it). Tribe's reply brief contained only one stray reference to the earlier brief's comments about it.

When he argued the case in front of the Supreme Court, Tribe didn't mention the Ninth Amendment even once. (An audio transcript of the case is available online.) Fifteen minutes into it, a justice asked Tribe "just what provision of the Constitution [the Virginia statute] violates as applied in this case." Tribe replied, "I think that it violates the Sixth Amendment, and the First, and the Fourteenth." He spent the rest of his opening argument on the First and Sixth Amendments. Virginia's lawyer, unsurprisingly, didn't mention the Ninth either. Tribe got to make a rebuttal, in which the words "Ninth Amendment" again did not pass his lips.

The exchange with Chief Justice Burger did not go as Tribe lays it out. Burger asked Tribe, "What provision of the Constitution did the Court draw on to make a presumption of innocence part of our fabric?" Tribe answered that the presumption is implicit in the Constitution because it is central to the legitimacy of the justice system. Burger then asked whether there were any "hints" that this view "was the tradition in 1787 and '89 and '90 and '91." Tribe said that there were. That was the whole exchange. Burger asked about no "litany" of rights. (Tribe's Green Bag essay attributes some other comments to Burger, but judging from the audio transcript he appears to be mistaken about who said what.) The idea that Burger was asking for "help" appears to be the professor's self-serving fantasy. Based on my analysis of the public record, so does the related contention that Tribe is responsible for the Ninth Amendment comments in Burger's opinion.

If we believed that "the Pooh-Bahs of the establishment" had lobbied Tribe to abandon the Ninth Amendment, we would have to conclude that they had succeeded in their aim. But it certainly looks as though establishment figures were more willing to press forward with Ninth Amendment claims than was Tribe himself. Whether or not Richmond Newspapers really is a Ninth Amendment landmark, it is not one because of Tribe.

Contacted by NR about the discrepancies, Tribe said that he did not remember various details about the case or the essay. He did not recall whether he had reviewed the audiotape before writing his essay or had gone from memory. He said that his essay never stated that his briefs or his oral argument had made an extensive Ninth Amendment pitch--which is true: He didn't say it in those exact words, but very strongly implied it. Pressed on that point, Tribe said that the essay only implied it "maybe [to] someone who wants to find in [the] essay something that isn't true."

Tribe continued, "I certainly wasn't intending to suggest that I [had] made any argument that I didn't make. What I was discussing in the essay was my own thinking about why the case was important. If you read anything more into it, that's your problem." There were good reasons for not pushing the Ninth Amendment too hard, he said. There was "a pervasive allergy to the Ninth Amendment" that made it "not polite to mention." But "I do remember very much that it figured very much in my sense of the importance of the case and it figured very much in my arguments with other lawyers."

There's a problem with Tribe's explanation. The Green Bag essay did not say that Tribe thought the case important for Ninth Amendment reasons but considered it imprudent to make that argument to the justices. It said that he had "dared to say" things, with the strong implication that those things concerned the Ninth Amendment, to the Supreme Court. It said that he had resisted the counsel of more timid souls. If he didn't mean to imply that the amendment played an important role in his briefs and oral argument, then what's the point of saying that people had told him to back off? Nobody would have warned him to back off from a private thought that he had no intention of expressing to the Court. Nor does it make sense for the professor to congratulate himself for resisting the pressure to back off from this private thought.

Tribe suggested that my article would be an "ambush." He said, "It's about my father's death. I would take that rather personally....I can't say I look forward to reading [the article] but I look forward to refuting it--in my father's memory, you can say. I have to say that this [conversation] hasn't been a pleasure."

Tribe called back a few hours later. He remembered something. "By the time of the oral argument, I had figured out a way ...to argue the case orally without invoking the Ninth Amendment, which I knew some people were allergic to." He again denied that the Green Bag essay had said that he had invoked the amendment. In other words, he stuck to (and elaborated on) the same explanation as in our first conversation.

In the Goodwin controversy, Tribe suggested that presenting fantasy as fact was a terrible offense for an academic--worse, indeed, than plagiarism. In the Green Bag essay, published a year after his defense of Goodwin, he appears to have committed precisely that offense while also taking credit for the achievements of others (Chief Justice Burger and anyone who actually influenced him). It is a sad and curious thing. Laurence Tribe has had an extraordinarily successful career. He has won many cases in the Supreme Court. His influence on the legal academy is deep. No one could reasonably ask for more in the way of fame or honors. Yet he can't seem to resist gilding the lily.